Atkinson v Independent Commission Against Corruption [2016] NSWCA 194

Atkinson v Independent Commission Against Corruption [2016] NSWCA 194

The applicant was not permitted after final judgment to recast the relief sought in a different form where the specific declaration had not been sought before the primary judge or on appeal, the possible outcomes were not complex, and the failure reflected a deliberate forensic choice or otherwise the applicant's own default. The proposed declaration was also imprecise and of no practical utility because the Court's reasons already disclosed the relevant conclusion and the Commission's corrupt conduct determination remained supported on another basis. There was no justification for varying the costs order on an issue basis, so the motion was dismissed with costs.

Jurisdiction
Australia
Judgment Date
08 August 2016
Procedural Posture
Notice of Motion to Vary Orders After Dismissal of Appeal in Judicial Review Proceedings Concerning ICAC Findings / Court of Appeal, on the Papers, After Judgment Delivered
Outcome
Notice of motion dismissed; applicant ordered to pay the Commission's costs of the motion.
Legal Topics
['variation of Orders After Judgment' 'uniform Civil Procedure Rules 2005 (nsw), R 36.16(3 A)' 'independent Commission Against Corruption Findings' 'issue Based Costs']
['judgments and Orders' 'costs' 'administrative Law'] ['variation of Orders After Judgment' 'uniform Civil Procedure Rules 2005 (nsw), R 36.16(3 A)' 'independent Commission Against Corruption Findings' 'issue Based Costs']

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Procedural Posture

Notice of Motion to Vary Orders After Dismissal of Appeal in Judicial Review Proceedings Concerning ICAC Findings / Court of Appeal, on the Papers, After Judgment Delivered

Legal Issues

  1. 1 ["Whether the Court should vary the order dismissing the applicant's appeal to include a declaration that an ICAC determination was wrong in law and a nullity." "Whether the Court should vary the costs order so that the applicant pay only 50% of the Commission's costs of the appeal." 'Whether relief not sought before the primary judge or in the notice of appeal should be permitted after final judgment.' 'Whether there was justification for awarding costs on an issue basis rather than by final outcome.']

Ratio Decidendi

The applicant was not permitted after final judgment to recast the relief sought in a different form where the specific declaration had not been sought before the primary judge or on appeal, the possible outcomes were not complex, and the failure reflected a deliberate forensic choice or otherwise the applicant's own default. The proposed declaration was also imprecise and of no practical utility because the Court's reasons already disclosed the relevant conclusion and the Commission's corrupt conduct determination remained supported on another basis. There was no justification for varying the costs order on an issue basis, so the motion was dismissed with costs.

Court Disposition

Notice of motion dismissed; applicant ordered to pay the Commission's costs of the motion.

Orders

  • ["Dismiss the applicant's notice of motion dated 5 July 2016." "Order that the applicant pay the Commission's costs of the motion."]